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A recent report issued by the Natural Resources Defense Council ("NRDC") and the National Disease Clusters Alliance ("NDCA") has identified 42-alleged disease clusters in 13 states. [Please click here for a map of these locations.] According to the report, there is an increased incidence of cancer, birth defects and other chronic illnesses in these disease clusters. The study, which focused only on the following 13 states (Texas, California, Michigan, North Carolina, Pennsylvania, Florida, Ohio, Delaware, Louisiana, Montana, Tennessee, Missouri and Arkansas), evaluated research compiled by federal, state and local officials, as well as peer-reviewed studies, to identify the 42 disease clusters. According to the NRDC and the NDCA, the purpose of the report was to highlight the need for (1) federal agencies to work cooperatively with state and local officials to investigate these disease clusters, (2) reduction or elimination of contaminant release into the air, water and soil and (3) chemical manufacturers to better ensure the safety of their products. Plans are apparently underway to evaluate whether disease clusters exist in each of the remaining 37 states. The NRDC is set to testify before the Senate Environment and Public Works Committee on Tuesday, March 29, 2011 on the results of this report. For a copy of the report, please click here.
A Colorado federal district court recently rejected a plaintiff's efforts to demonstrate RCRA imminent and substantial endangerment based solely on the presence of contamination in excess of applicable state standards and ongoing regulatory oversight of the remediation efforts. In Board of County Commissioners of the County of La Plata v. Brown Group Retail, Inc. et al., the current property owner (the County) asserted a RCRA claim (as well as a CERCLA cost recovery claim) against the corporate successor to a former site owner. In support of its RCRA claim, the County relied upon a health risk assessment that concluded that environmental conditions at the site presented a risk to human health due in large part due to the presence of contaminants in soil, groundwater, and indoor air that exceeded applicable regulatory action levels. The court rejected that argument, noting that "[r]egulatory screening levels, action levels, and standards do not identify real or actual risks to human health. Rather, these regulations are designed to protect the public health by identifying the level of chemical exposure at which there is no threat of harm with a large margin of error. Exceedance of regulatory screening levels, action levels, or standards therefore does not demonstrate a real or actual risk to human health."
On March 14, 2011, the Ninth Circuit affirmed a district court ruling that found that BCI Coca-Cola Bottling Co. ("BCI") was not liable as an owner under CERCLA. In Los Angeles v. San Pedro Boat Works, the city of Los Angeles sued BCI to recover response costs it had incurred to remediate contaminated sediments in Los Angeles Harbor. According to the complaint, the City alleged that the activities of BCI's predecessor-in-interest, Pacific American, Inc. ("Pacific-American") contributed to the sediment contamination in the harbor. Pacific-American did not own the boat works facility outright but rather operated that facility pursuant to a permit that had been issued by the city of Los Angeles. In support of its CERCLA claims, the City argued that because Pacific-American owned the permit, it was an "owner" under CERCLA. The City also argued that Pacific-American was liable as an "operator" under CERCLA. The district court found that BCI was neither an "owner" or "operator" under CERCLA. The City appealed the district court's finding that BCI was not an "owner" under CERCLA; however, for reasons that are not clear from the record, the City did not appeal the "operator" liability determination.
On March 11, 2011, the United States Environmental Protection Agency released its fourth version of the National Air Toxics Assessment ("NATA"). NATA is an analytical tool relied upon by federal, state and local governments to evaluate the risks posed by exposure to airborne hazardous pollutants. The current version of NATA contains 2005 emissions data submitted primarily by the states for 178 pollutants and is used as a prioritization tool to identify geographic areas, pollutants and emission sources that should be considered by regulators when evaluating the health risks posed by airborne hazardous pollutants.
In the March 10, 2011 edition of the Federal Register, the United States Environmental Protection Agency (EPA) issued the final rule adding 10 new sites to the National Priorities List (NPL). EPA also issued a proposed rule to add 15 new sites to the list of those sites that it proposes to add to the NPL in the future.
The NPL is authorized by the Comprehensive Environmental Response, Compensation and Liablity Act, 42 U.S.C. 9601, et seq (also known as Superfund). Only EPA is allowed to propose and finalize the sites on the NPL, which it determines: (1) based on the ranking of a site with a score of 28.50 or higher under the agency's Hazard Ranking System (40 CFR part 300); (2) if a site is designated by a state as its top priority site (40 CFR 300.452(c)(2); or (3) if EPA determines, without using the HRS, that the site poses a significant threat to public health based on a health advisory issued by the Agency for Toxic Substances and Disease Registry (ATSDR) and EPA believes that remedial action is more cost-effective than removal action at the site (40 CFR 300.452(c)(3). The NPL includes those sites with known or threatened releases of hazardous substances that may present an imminent or substantial danger to public health or welfare. The NPL is to guide EPA's priorities for further investigatory and remedial action, but is not a determination of any party's liability. The NPL is divided between sites that EPA may address and those owned or operated by other federal agencies, which then will be addressed by those agencies.
The ten new sites on the NPL are:
Gabrielle Sigel and Phoebe Scott, attorneys in Jenner & Block's Environmental, Energy & Natural Resources Law Practice, recently posted to Jenner & Block's Environmental Cost Recovery & Lender Liability Update Resource Center their January 2011 Update of Environmental Cost Recovery developments. The January 2011 Lender Liability Update can be viewed by following this link: http://www.jenner.com/news/news_item.asp?id=000015734424.
A proposed bill pending before the Illinois House of Representatives' Environmental and Energy Committee seeks to amend Illinois' Environmental Protection Act (the "Act") to allow municipalities to impose significant penalties against any person or organization owning or leasing property where there has been a release of a hazardous substance or any other contaminant that the municipality (or other unit of local government) finds to be injurious to public health or the safety of the community. House Bill 1441, which was proposed by Representative Frank Mautino (D-76th Dist.), seeks to amend the Act to allow for the imposition of penalties of up to $50,000 per violation and $10,000 for each day of continuing violation where there has been a release of a hazardous substance (or other contaminant) that the municipality (or unit of local government) deems harmful to public health or safety. The bill, as currently drafted, allows the municipality to designate, in its sole discretion, when there has been a release of a contaminant that injures the public health or safety such that the penalty provisions are triggered.
This week EPA submitted its draft study plan on hydraulic fracturing for review to the Agency's Science Advisory Board (SAB), a group of independent scientists. The scope of the proposed research includes the full lifespan of water in hydraulic fracturing, from acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water and its ultimate treatment and disposal.
A Pennsylvania appellate court held that an environmental contractor hired to conduct air emission monitoring owned no duty to persons residing near an industrial facility to warn of excess beryllium emissions. In Reeser v. NGK North American, Inc., the plaintiff contracted chronic beryllium disease as a result of alleged exposure to beryllium emissions from a nearby industrial facility. The facility owners had retained an engineering firm to conduct stack testing at the plant. The results of that stack testing showed exceedences of beryllium from the facility. The plaintiff sued, among others, the engineering firm, on the basis that the engineering firm had breached a alleged duty to warm the public of the health risks posed by the excess emissions. The plaintiff argued that Section 324A of the Restatement (Second) of Torts imposed such a duty to warn on the engineering firm. The court rejected that argument, noting that in order for a duty to be imposed by Section 324A of the Restatement, the engineering firm needed to have undertaken a duty to protect the community. The court noted that there was no evidence that the engineering firm had undertaken such a duty nor was there any evidence that the testing had been conducted negligently. To hold otherwise, the court noted, would inhibit owners from hiring qualified consultants to investigate environmental conditions and would have been inconsistent with the purpose behind Restatement (Second) of Torts Section 324A. It should be noted that some states do impose an independent duty on environmental contractors to report certain conditions that are identified in the course of an environmental investigation so it is prudent to evaluate whether there are any state-specific reporting obligations as part of any environmental investigation.
In testimony before the Senate Environment and Public Works Committee, EPA Administrator Lisa Jackson confirmed that EPA likely will regulate hexavalent chromium in tap water but only after completing its health assessment study of the toxic contaminant. Jackson told the committee that the regulatory process would take up to two years including the completion of the human health assessment study and the ensuing public comment period. The final study is now being peer-reviewed and should be completed later this year.
U.S. investors announced today they have filed shareholder resolutions with nine oil and gas companies, pressing them to disclose their plans for managing water pollution, litigation and regulatory risks that are increasingly associated with ever-expanding natural gas hydraulic fracturing operations, also known as "fracking." Resolutions were filed with a number of the natural gas industry's significant players including Exxon Mobil, Chevron, Ultra Petroleum, El Paso, Cabot Oil and Gas, Southwestern Energy, Energen, Anadarko and Carrizo Oil and Gas.
On January 19, 2011, in response to vociferous objection from the regulated community, OSHA withdrew its proposed official interpretation of the term "feasible administrative or engineering controls" as used in its General Industry and Construction Occupational Noise Exposure standards. The standards state that employers must use administrative or engineering controls, rather than personal protective equipment (PPE), to reduce noise exposures that are above acceptable levels when such controls are "feasible," i.e., "capable of being done," even if the cost of such controls are much more than the effective use of PPE, such as ear plugs. Notably, OSHA withdrew this proposed interpretation before the close of public comments in March 2011.
On January 11, 2011, the U.S. Supreme Court denied the petition for a writ of mandamus filed by the plaintiffs in Comer v. Murphy Oil U.S.A., a climate change common law case with an unusual procedural outcome in the Fifth Circuit Court of Appeals. In re Comer, et al., No. 10-294 (docketed Aug. 30, 2010). The underlying complaint was brought by property owners who claimed that the greenhouse gas ("GHG") emissions of the defendant energy, fossil fuel-burning, and chemical companies had worsened the impacts of Hurricane Katrina on their properties and that they were entitled to damages and other relief under, inter alia, common law nuisance, trespass, and negligence theories.
The World Health Organization (WHO) recently issued its first guidance on indoor air quality concerns. The new report titled WHO Guidelines for Indoor Air Quality-Selected Pollutants evaluates exposure risks and other considerations for nine chemicals commonly found in indoor air. The nine chemicals addressed in the report are benzene, carbon monoxide, formaldehyde, naphthalene, nitrogen dioxide, polycyclic aromatic hydrocarbons, radon, trichloroethylene, and tetrachloroethylene.